United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
On October 15, 2013, Plaintiff Nicholas Joseph Reid, who is confined in the Yavapai County Detention Center, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and a deficient Application to Proceed In Forma Pauperis (Doc. 2). In a November 4, 2013 order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to file a complete Application to Proceed. On November 18, 2013, Plaintiff filed a second deficient Application to Proceed (Doc. 5). In a December 12, 2013 order, the Court denied the second deficient Application to Proceed and gave Plaintiff 30 days to file a complete Application to Proceed. On December 31, 2013, Plaintiff filed a complete Application to Proceed (Doc. 7). The Court will grant the Application to Proceed (Doc. 7) and dismiss the Complaint (Doc. 1) with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (citation omitted). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted). Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Here, Plaintiff fails to state a claim upon which relief can be granted in his Complaint, but it appears that the Complaint could be cured by allegations of other facts. Accordingly, Plaintiff's Complaint will be dismissed without prejudice and Plaintiff will be given an opportunity to amend.
In his Complaint, Plaintiff alleges three counts against Sheriff Scott Mascher; the Wexford Health Director; Sasheen, a nurse at Yavapai County Detention Center; and the Yavapai Board of Supervisors. Plaintiff alleges the following facts in all three counts: Plaintiff has multiple screws in his jaw from a surgery in January 2013. Plaintiff was awaiting the necessary surgery to remove the screws when he was arrested. Due to "jail policy, " Plaintiff was unable to receive the surgery. Plaintiff has been repeatedly denied access to a dentist or medical staff with the necessary expertise to evaluate Plaintiff's medical problem.
The screws in Plaintiff's mouth cause him severe pain and migraine headaches. The Wexford health doctor has informed Plaintiff that he will only be given Tylenol and Advil and those medications do not help. Plaintiff has had two infections around the screws, which were treated with antibiotics. Plaintiff currently has another infection and the tissue has created a painful abscess around the screw in his gums. Plaintiff has filed multiple requests to medical, which have been ignored. Plaintiff has also filed multiple grievances and was told that he will not receive treatment and continued complaints will result in disciplinary sanctions. Jail policies are designed by County Attorney Sheila Polk and the Yavapai County Board of Supervisors and are ratified by Sheriff Mascher in order to gain a tactical advantage by hindering and discouraging Plaintiff from exercising his rights during the "plea bargain" phase of his criminal case. Plaintiff was subject to pain for seven months and was unable to participate in his defense without being punished, hindered, and discouraged with pain.
In Count One, Plaintiff alleges that he was denied medical care in violation of his Eighth Amendment rights. In Count Two, Plaintiff alleges that his Fourteenth Amendment due process rights were violated. In Count Three, Plaintiff alleges that his Sixth Amendment right to participate in his defense was violated. Plaintiff seeks monetary damages and declaratory relief.
IV. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must ...